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MASTER SERVICE AGREEMENT: RESELLER
CAREFULLY READ THESE TERMS AND CONDITIONS, AS THEY FORM A LEGALLY BINDING
AGREEMENT BETWEEN YOU AND INTERMEDIA.NET, INC. ONLY AN AUTHORIZED
REPRESENTATIVE OF YOUR COMPANY MAY EXECUTE THIS AGREEMENT. IF YOU DO NOT
ACCEPT THESE TERMS AND CONDITIONS, CLOSE YOUR BROWSER AND DO NOT PROCEED
WITH USING THE SERVICES.
By clicking “I Agree and Continue,” You agree to
be bound by all of the terms and conditions of (i)
this Master Service Agreement with Intermedia.Net,
Inc. (“Intermedia”); (ii) You represent and warrant
that you have entered into agreements with Your
End Users that contain, at a minimum, the terms or
their analogs found in Appendix I; and (iii) the
following:
•
Intermedia’s Privacy Policy (the “Privacy
Policy”);
•
Intermedia’s Service Level Agreement ( the
“Service Level Agreement” or “SLA”);
•
Intermedia’s Acceptable Use Policy (the
“AUP”); and
•
Intermedia’s Schedules (the “Schedules”).
•
All of the above referenced documents are
collectively referred to as the “Agreement.”
Each of the foregoing are expressly incorporated
herein by reference and may be updated from timeto-time by Intermedia. Current copies of the
Privacy Policy, SLA, AUP, and Schedules are
located at http://intermedia.net/legal.
If You do not agree to any of the terms of this
Agreement, then You (i) must click “I Decline” or
close Your browser and (ii) do not have
Intermedia’s permission use the Services.
If you are an individual entering into this Agreement on
behalf of an Entity (as defined below), you represent
and warrant that you have the authority to bind such
Entity to this Agreement. If you do not have such
authority, neither you nor such Entity may accept this
Agreement or use the Services.
You acknowledge and agree that Intermedia is not
providing You SIP trunk (VOIP) or audio bridge
services under this Agreement and that any use of
telephony or other voice communications used in
connection with the Services are provided by a
third party and at Your sole risk.
MSA: Reseller V5.7
Definitions. For the purposes of this Master Service
Agreement, the following definitions apply:
“Access Information” means information that alone or
together with other information, can provide access
to any portion of Your Account, including but not
limited to Your Account number, login names,
passwords, credit card or other financial information,
security questions and their respective answers, and
any other similar information. For the avoidance of
doubt, Your Access Information will include any
similar information for each of Your Users.
“Account” means the account created with
Intermedia in connection with this Agreement that
relates to Your purchase or subscription to and use
of Services and/or Voice Services by You and Your
Users.
“Applicable Law” means any applicable foreign,
federal, state or other laws, rules, regulations or
interpretations of relevant Governmental Authorities
or self-regulatory bodies.
“Beta Offerings” means any portion of the Services
and/or Voice Services offered on a “beta” basis, as
designated by Intermedia, including but not limited to
products, plans, services and platforms.
“Data” means all data submitted by Your Users to
Intermedia in connection with the Services and/or
Voice Services, including all content, material, IP and
similar addresses, recordings, messages, software,
Account information and Account-related settings.
“End User” means any person or Entity purchasing
Services and/or Voice Services from You.
“Entity” means a company, corporation, partnership,
association, trust, unincorporated organization,
government or political subdivision or any other legal
entity.
“Governmental Authority” means a government,
regulatory organization, self-regulatory organization,
court of competent jurisdiction or similar body.
“Interconnected VoIP Services,” referred to as “VoIP”
services herein, means services satisfying the
definition provided for in 47 C.F.R. Section 9.3 as
may be amended from time to time.
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“Intermedia” means Intermedia.Net, Inc., a Delaware
corporation with offices at 815 East Middlefield Road,
Mountain View CA 94043.
“Intermedia Parties” means Intermedia’s affiliates
(including parents and subsidiaries), vendors,
licensors and partners, and it and their officers,
employees, agents and representatives.
“PHI” means Protected Health Information which is
individually identifiable health information.
“Schedule(s)” means documents that specifically
describe the Services and/or Voice Services used by
You under this Agreement, including product
descriptions, pricing, and other terms. Each
Schedule shall be deemed a part of and incorporated
into the Agreement.
“Services” means Intermedia’s hosting and/or other
services, software and products, as such services,
software and products are offered by Intermedia from
time-to-time in its discretion and subscribed to,
purchased by, or used by You as set forth on a
Schedule.
“Third-Party Service” means any service or product
offered by a party that is not Intermedia.
“User” means any of Your employees, consultants or
independent contractors to whom You grant
permission to access the Services in accordance
with Intermedia’s entitlements, procedures, and this
Agreement.
“Voice Services” means the provision of real-time,
two-way voice services by Intermedia to You.
“You” or “Your” means the individual or Entity on
whose behalf this Agreement is accepted.
1. PARTNER APPOINTMENT.
1.1.
Appointment.
Subject to and in
accordance with the terms of this Agreement,
Intermedia hereby appoints You, and You hereby
accept appointment, as Intermedia’s limited, nonexclusive partner to promote and sell Services to Your
customers and/or their end users (“End Users”) under
the terms provided herein. For the avoidance of doubt,
your End Users may not further resell Services under
this Agreement. You acknowledge and agree that the
actions of any of Your Users with respect to the terms
of this Agreement and the Services will be deemed to
be actions by You and that any breach by any of Your
Users of the terms of this Agreement will be deemed to
be a breach by You.
1.2.
Obligations. You agree to comply with
the terms and conditions of this Agreement and with all
applicable Intermedia procedures and policies shall
identify and register End Users in accordance with the
terms hereof and Intermedia’s applicable policies. You
shall ensure that (i) prior to accessing the Services,
MSA: Reseller V5.7
each End User agrees to, and is legally bound by with
You, a written contract that contains, at a minimum, the
terms or their analogs found in Appendix I and any
other agreements and documents presented by
Intermedia that are required to provide the Services,
each as amended by Intermedia from time-to-time; (ii)
Services will only be provided to such End Users; and
(iii) Your End Users comply with and that You will
enforce the terms of the written contract entered into
between You and End Users; and (iv) You will have
Your legal counsel review, revise and otherwise advise
You regarding the End User contract You enter into
with End User. You acknowledge that the End User
agreement provided in Appendix I is only a sample
and You are not relying on Intermedia for legal
advice with respect to your End User contract. You
are permitted to obligate End Users to agree to
additional terms and conditions, provided that such
additional terms and conditions do not conflict with the
terms provided for in Appendix I or this Agreement.
You hereby represent and warrant that (i) You are a
bona fide partner and have not entered into this
Agreement for the purposes of receiving the Services
for Yourself; (ii) You have sufficient personnel and
resources to promote, support and sell the Services;
(iii) You shall perform Your duties and obligations
hereunder in a diligent and businesslike manner and
refrain from any activity or action that may damage
Intermedia’s reputation or the reputation of the
Services; (iv) You shall use Your best efforts to
promote the Services; and (v) You shall not store,
maintain, or use on or through the Service any
“Protected Health Information” or “PHI” as those terms
are defined in the Health Insurance Portability and
Accountability Act of 1996 and the rules and
regulations promulgated thereunder, as each may be
amended from time to time, unless a formal Business
Associate Agreement has been executed between
Intermedia and You.
1.3.
Partner’s Additional Responsibilities
with Respect to Voice Services Only. Your duties with
respect to Voice Services only hereunder are as
follows: (i) You shall endeavor to promote the Voice
Services; (ii) You shall advise Intermedia from time to
time as to problems encountered with the Voice
Services and as to any resolutions arrived at for those
problems; (iii) You shall collaborate in connection with
promotional activities of the Voice Services; (iv) You
may not make any representations or warranties
concerning the Voice Services to End Users unless so
authorized in writing in advance by Intermedia; and (v)
You represent and warrant that (a) You will obtain
written, affirmative acknowledgements, with
disclosures that comply with federal and relevant
state law, from all End Users that subscribe to VoIP
service offerings that they understand the
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MSA: RESELLER
limitations of access to emergency services
associated with VoIP services; and (b) You will
keep
a
record
of
such
affirmative
acknowledgements as required by federal and
relevant state law. You agree that Voice Telco
Services, Inc. will be identified as the provider of Voice
Services on all End User invoices for Voice Services.
1.4.
Additional
Responsibilities
of
Intermedia with Respect to Voice Services Only.
Intermedia shall have the following responsibilities with
respect to the Voice Services only: (i) provide the
Voice Services to the End Users through Intermedia’s
affiliate, Voice Telco Services, Inc.; (ii) provide You
with sales and technical information regarding the
Voice Services as reasonably necessary to promote
the Voice Services, including support directly to
employees and representatives of partner; (iii) provide
directly to End Users support services to End User for
the Voice Services; and (iv) inform You of any changes
in the Services, prices, terms of payment and/or listing
options to the Voice Services, which Intermedia may
make in its sole discretion at any time. Any changes to
the Services, or prices, terms of payment and/or listing
options made by Intermedia and posted on
Intermedia’s website http://www.intermedia.net shall be
incorporated into this Agreement.
2. SCOPE; ACCESS; SECURITY
2.1.
Account Information and Ownership.
You agree to maintain accurate Account information by
providing updates to Intermedia promptly, but no later
than three (3) business days, when any of Your
Account information requires change, including any
relevant Account contact information. Failure by You,
for any reason, to respond within three (3) business
days to any inquiries made by Intermedia to determine
the validity of information provided by You will
constitute a material breach of this Agreement. You
acknowledge and agree, and expressly consent, that in
the event of any dispute regarding access to or legal
ownership of any Intermedia account or any portion
thereof, including Your Account, Intermedia will resolve
such dispute in its sole discretion. In addition, in the
event of such a dispute, Intermedia may immediately
suspend, alter or terminate any relevant account,
including Your Account, or any portion thereof. You will
reimburse Intermedia for any legal and other fees
incurred with respect to any dispute regarding control
or ownership of Your Account or Your Data or the
same of another Intermedia customer. You
acknowledge and agree that (i) the legal owner of all
Data on the Account is You, the counterparty to this
Agreement, and not any individual User, including any
Account contact registered with Intermedia, regardless
of any administrative designation (e.g., Administrator,
Billing Contact, Owner, etc.); and (ii) Intermedia may
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request any documentation it requires to establish
ownership and rights to Your Account and any related
Data; provided that any User with an administrative
designation has the authority to bind You to any
amendments, modifications or acknowledgements
regarding this Agreement or otherwise relating to the
Services and/or Voice Services.
2.2.
Account Security and Activity. You
acknowledge and agree that You are solely
responsible for (i) maintaining the confidentiality and
security of Your Access Information, and (ii) all
activities that occur in connection with Your Account,
whether initiated by You, by others on Your behalf or
by any other means. You will notify Intermedia
immediately of any unauthorized use of Your Account,
Access Information or any other actual or potential
breach of security. You acknowledge and agree that
Intermedia will not be liable for any loss that You may
incur as a result of any party using Your Access
Information, either with or without Your knowledge
and/or authorization. You further agree that You may
be held liable for losses incurred by Intermedia, any
Intermedia Party or another party due to any party
using Your Access Information. Intermedia strongly
recommends that You keep Your Access Information in
a secure location, take precautions to prevent others
from accessing it and change it when necessary to
maintain its confidentiality and security. Intermedia
specifically disclaims all liability for any activity in
Your Account, whether authorized by You or not.
2.3.
Expenses. You are solely responsible
for any and all marketing, advertising and other costs
and expenses of Your office, employees and activities
that You undertake in connection herewith.
2.4.
Restrictions on Use. You agree that
the Intermedia Property contains trade secrets and
other valuable confidential and/or proprietary
information belonging to Intermedia and/or its
licensors. You shall not (i) rent, lease, encumber,
pledge, lend, copy, make available or distribute the
Intermedia Property, except as expressly permitted by
this Agreement; (ii) disclose the Intermedia Property to
any third party, (iii) alter, or permit the alteration of any
Intermedia Property; (iv) copy, or permit the copying or
distribution of any Intermedia Property; (v) knowingly
take any action that jeopardizes Intermedia’s
proprietary rights in any Intermedia Property; (vi)
acquire or seek to acquire any ownership interest in or
to any Intermedia Property; (vii) reverse engineer,
decompile, disassemble, or otherwise attempt to derive
source code from any Intermedia Property; or (viii)
remove, modify or obscure any copyright, trademark or
other proprietary rights notices that appear on the
Intermedia Property or that appear during use of any
Intermedia Property. Except as expressly provided
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MSA: RESELLER
herein, nothing in the Agreement shall be interpreted
as granting to You or any other person or Entity, any
right, title, or interest in or to any Intermedia Property.
2.5.
Third
Party
Beneficiary.
You
acknowledge and agree that (i) Intermedia shall be
deemed to be a third party beneficiary of the End User
MSA and (ii) You shall use Your reasonable efforts at
Your own expense to assist Intermedia in enforcing the
terms of the End User MSA.
2.6.
Non-Conforming or Interfering Use of
Services and/or Voice Services; Privacy Policy. If
Intermedia determines that the use of Services and/or
Voice Services by You or Your End Users (i) fails to
conform with the terms and conditions of this
Agreement (including any Intermedia policies), or (ii)
interferes with Intermedia’s ability to provide the
Services and/or Voice Services to You, Your End
Users or our other partners and/or resellers or
customers, then Intermedia may immediately suspend
the Services and/or Voice Services until such nonconformity or interference is cured. You acknowledge
and agree that the terms of Intermedia’s Privacy Policy
shall apply to the Data of You and Your Users and the
Data of your End Users.
2.7.
Failure of a Line Test. With respect to
Voice Services, if a specific customer location fails a
“line test” as part of the installation process, and the
customer is unable or unwilling to upgrade the data
circuit, router, switch or faulty component responsible
for the failure, Intermedia reserves the right to cancel
the order for such site.
3. TERM AND TERMINATION.
3.1.
Term. This Agreement shall be
effective from Your acceptance of this Agreement and
shall continue until the expiration or termination of all
Schedules (“Agreement Term”). The term of each
Schedule (“Schedule Term”) shall be either the Initial
Term or Renewal Term as defined herein.
(a)
Monthly Plan Schedule Term. For a
Monthly Plan with Intermedia, the Initial Term of a
Schedule is the period from the date of Your initial
payment or acceptance of the Schedule, whichever
occurs earlier, through the remainder of that calendar
month. A Renewal Term for a Monthly Plan of a
Schedule is defined as one (1) calendar month
beginning at the end of the Initial Term and each
subsequent calendar month thereafter.
Annual Plan Agreement Term. For
an Annual Plan with Intermedia, the Initial Term of
the Schedule is the period from the date of Your
initial payment or acceptance of the Schedule,
whichever occurs earlier, through the remainder of
that calendar month and continuing through the next
(b)
MSA: Reseller V5.7
twelve (12) calendar months (for example, an Annual
Plan that begins April 14th will continue until April
30th of the following year), unless the parties have
agreed in writing to a longer term. A Renewal Term
for an Annual Plan of a Schedule is defined as the
twelve-month period beginning at the end of the
Initial Term and each subsequent twelve-month
period thereafter.
(c)
Automatic Renewal. Each Schedule
will renew automatically at the end of the thencurrent Schedule Term for a Renewal Term unless
terminated in accordance with this Agreement by
either You or Intermedia.
3.2. Termination by You.
(a)
Monthly Plan. For a Monthly Plan.
You may terminate any Schedule for any reason by
following the termination procedure located within the
“Account” section of the administrative control panel
prior to the beginning of any Renewal Term. If You
terminate a Monthly Plan prior to the end of the thencurrent Term, Intermedia will not be required to refund
to You any fees already paid.
(b)
Annual Plan. For an Annual Plan,
You may terminate any Schedule for any reason by
following the termination procedure located within the
Account section of the administrative control panel at
any time for Intermedia to terminate Your Account. If
such a termination is effective prior to the end of the
then-current Term, You will incur a fee that is the
lesser of (a) two (2) months of the Minimum Package
Fee from the end of the calendar month following the
requested termination date, as defined on Your thencurrent plan; and (b) the Minimum Package Fee for
the remainder of the then-current Term. The
“Minimum Package Fee” is the monthly charge for
Your base package excluding any additional items
that You have purchased along with such base
package.
(c)
Refunds/Fees for Termination by
You. Fees for non-recurring Services and/or Voice
Services and set up fees will not be refunded. Any
fees previously waived or discounts applied may be
reinstated if You terminate the account during the
Schedule Term or if You breach this Agreement,
including any Schedule.
3.3. Termination by Intermedia.
(a)
30-Day Termination. Intermedia may
terminate this Agreement or any Schedule for any
reason by providing thirty (30) calendar days’ notice. If
Intermedia terminates this Agreement pursuant to this
Section 3.3(a), then all Schedules will terminate at the
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end of the thirty (30) day notice period. If Intermedia
terminates any Schedule pursuant to this Section
3.3(a), then (i) for a Schedule with a Monthly Plan, if
the effective termination date occurs prior to the end of
the then-current Schedule Term, Intermedia will refund
(or refrain from charging You) the pro rata monthly fees
for the month in which Services and/or Voice Services
terminate and (ii) for a Schedule with an Annual Plan,
Intermedia will refund (or refrain from charging You)
the monthly fees for the month in which Services
and/or Voice Services terminate. For Schedules with
either a Monthly Plan or an Annual Plan, if Intermedia
terminates this Agreement or any Schedule pursuant to
this Section 3.3(a), Intermedia will not charge You
monthly fees for any month following the month in
which Intermedia terminates this Agreement, including
any Schedule.
(b)
Immediate Termination. Intermedia
may terminate this Agreement, including any
Schedule (or suspend Your Account) immediately
and without prior notice for any of the following
reasons:
Any material breach of this
Agreement, including any Schedule, by You, as
determined by Intermedia in its sole discretion,
including, but not limited to, failure to make any
payment when due, violation of the AUP or any
other Intermedia policy or procedure applicable to
the Services and/or Voice Services as notified to
You from time to time, which remains uncured
beyond thirty (30) days’ notice by Intermedia; and
(i)
(ii)
If Your use of the Services
and/or Voice Services results in, or is the subject of,
actual or potential legal action or threatened legal
action, against Intermedia or any of its affiliates,
vendors, partners, representatives or customers,
without consideration for whether such actual or
potential legal action or threatened legal action is
eventually determined to be with or without merit.
Termination or Suspension of
Users. In lieu of terminating or suspending Your
entire Account, Intermedia may suspend Your
Account or terminate or suspend individual Users.
(c)
3.4.
No Refunds; Further Payment Due. If
Intermedia terminates this Agreement or any
Schedule pursuant to Section 3.3(b), (i) Intermedia
will not refund to You any paid fees and (ii) You will be
liable for any payment that would have been due had
You terminated pursuant to section 3.2.
3.5.
Following Termination. Termination
will not cancel or waive any fees owed to Intermedia
or incurred prior to or upon termination. You agree
MSA: Reseller V5.7
that Intermedia may charge such unpaid balance to
Your Account on file or otherwise bill You for such
unpaid balance. Upon termination, You must promptly
uninstall all software provided by Intermedia in
connection with this Agreement. All of Your Data will
be irrevocably deleted within fourteen (14) calendar
days of termination, including but not limited to,
databases, contacts, calendars, e-mail, website
content and any other Data hosted by Intermedia. It
will be solely Your responsibility to secure all
necessary Data from Your Account prior to
termination. Intermedia will not be responsible for any
loss of Your Data, or any damages arising from the
deletion of Your Data following termination of the
Services and/or Voice Services.
4. FEES, PAYMENT AND EXPENSES.
4.1.
Fees. You agree to pay the fees
(“Service Fees”) on the page linked to from
http://www.intermedia.net/resellers/private-labelprogram#Pricing, as such page is amended by
Intermedia from time to time in its sole discretion
without prior notice. Additional fees may apply, such
as migration and customization fees, professional
services fees, out-of-pocket expenses and any other
fees that Your End Users are responsible for,
including excess use fees.
4.2.
End User Billing and Collection. You
shall be solely responsible for billing Your End Users
and collecting their payments. If You utilize the
Intermedia payment gateway functionality to collect
payments from your End Users, You assume full
responsibility for Your usage of such functionality and
Intermedia is in no way responsible for the
performance of the Intermedia payment gateway, your
payment processor or your bank.
4.3.
Intermedia Billing. Intermedia shall use
commercially reasonable efforts to bill You no later
than on the fifth (5th) day of each month for the
previous month’s usage of the Services and/or Voice
Services.
4.4.
Unpaid Accounts. No Service Fee
shall be due to Intermedia in connection with any
unpaid End User account which is (i) disabled no later
than the fifteenth (15th) of the month following the
month in which such account was created and (ii)
terminated within fifteen (15) days after it was
disabled. No Service Fee shall be due to Intermedia in
connection with any partner internal test accounts
provided such accounts are marked as nonchargeable test accounts prior the end of the month in
which such accounts were created and such accounts
to not exceed thirty (30) days in duration.
4.5.
Electronic Billing. Except as provided
in Section 4.7 below, all payments hereunder shall be
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made by credit card. You hereby authorize Intermedia
to electronically charge Your credit card for payment
for the Services and/or Voice Services. You hereby
authorize Intermedia to (i) make such charges as
necessary for payment of current and outstanding bills
and invoices, and recurring fees; (ii) make additional
attempts to charge should the initial attempt fail; and
(iii) in the event that You provide Intermedia with
different credit card information to correct any failure,
act upon Your instructions, whether by phone, in
writing, or by other means, that Intermedia reasonably
believes to be genuine.
4.6.
Invoice Billing. After Your partner
account has been in good standing for six (6)
consecutive months in each of which You were
charged at least five hundred dollars ($500.00) per
month, You may request to be switched to invoice
billing. Acceptance into Intermedia’s invoice program
shall be at Intermedia’s sole discretion. Upon approval
by Intermedia, you may be allowed to pay on an
invoice basis, and Intermedia will issue You an
invoice within the first five (5) days of each calendar
month for the prior month’s charges. Each monthly
invoice shall include an invoice processing fee of
twenty-five dollars ($25.00). Payment by check or
wire must be received by the fifteenth (15th) calendar
day of the month in which the invoice is sent. All such
payments shall be made in U.S. dollars. Payments
may not be made by any other means without the
prior written consent of Intermedia. Should any check
from you not be honored by the relevant financial
institution, a returned check fee in the amount of the
lesser of fifty dollars ($50.00) or the maximum amount
allowed by law, will be assessed.
4.7.
Late Payment. In the event that
Intermedia does not receive payment by the fifteenth
(15th) calendar day of the month for which the
payment is due, Intermedia shall have the right to
assess a late payment fee, equal to the greater of the
amount of (a) interest calculated at the lesser of
eighteen percent (18%) or the maximum rate
permitted by law, or (b) twenty-five dollars ($25.00).
In the event of late payment(s) on Your account,
Intermedia, at its sole discretion and without waiving
other rights it may have, may suspend, interrupt, or
terminate the Services and/or Voice Services to You
and Your End Users. In the event of excessive churn
or failure to pay timely, Intermedia reserves the right
to convert Your private label or gray label accounts to
Intermedia direct accounts under its agent or advisor
program. In the event that this conversion takes
place, You will be entitled to ongoing commissions at
the rate available at that time; however, You shall not
be entitled to any special incentives, bounties, or onetime payments.
MSA: Reseller V5.7
4.8.
Fees for Additional Services and/or
Voice Services. You agree to pay Intermedia’s current
rates and expenses, including the cost of Intermedia’s
vendors, for any requests related to information
retrieval, subpoenas, consulting and advisory services
or similar work.
4.9.
Service Continuation. In the event that
You fail to pay any outstanding amounts within sixty
(60) days of any uncontested amount due, Intermedia
shall have the right to assume responsibility for any
customer accounts for which payments are due. In
this event, these accounts would be branded, billed
and supported directly by Intermedia, and reseller
would receive a monthly recurring Advisor
commission (less any monies due for prior service)
pursuant to the then-current Intermedia Advisor rates
posted at http://www.intermedia.net; and provided that
You have executed Intermedia’s Advisor Agreement.
5. MODIFICATION OF TERMS.
Intermedia may update, amend, modify or
supplement the terms and conditions of this Agreement
from time to time upon notice to You. You can review
the most current version of this Agreement at any time
at http://www.intermedia.net/legal.
6. LIMITED WARRANTY; LIMITATION OF DAMAGES.
6.1.
Intermedia provides Services and/or
Voice Services “as is.” You expressly agree that
the resale and/or use of Services and/or Voice
Services is at your sole risk. Intermedia and its
subsidiaries, affiliates, officers, employees,
agents, partners, vendors and licensors expressly
disclaim all warranties of any kind, whether
express or implied, including, but not limited to
the implied warranties of merchantability, fitness
for a particular purpose and non-infringement.
You hereby agree that the terms of this agreement
shall not be altered due to custom or usage or due
to the parties’ course of dealing or course of
performance under this agreement.
6.2.
Intermedia and its subsidiaries,
affiliates, officers, employees, agents, partners,
vendors and licensors shall not be liable for any
direct, indirect, incidental, special, punitive or
consequential damages, including but not limited
to damages for lost profits, business interruption,
loss of programs or information, and the like, that
result from the use or inability to use the Services
and/or Voice Services or from mistakes,
omissions, interruptions, deletion of files or
directories, errors, defects, delays in operation, or
transmission, regardless of whether Intermedia
has been advised of such damages or their
possibility. Some states do not allow the
exclusion
or
limitation
of
liability
for
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consequential or incidental damages, so the
preceding exclusions may not apply to all parties;
in such states, and only such states, the liability is
limited to the fullest extent permitted by law.
6.3.
You agree that the total liability of
Intermedia and the Intermedia Parties and Your
sole remedy for any claims regarding the Services
and/or Voice Services is limited to the credits set
forth in the applicable Service Level Agreement.
You further agree that You will limit the liability of
End Users to conform with this Section 6.3.
6.4.
In the case of translated or
otherwise customized versions of the Services
and/or Voice Services that have been enabled by
You, Intermedia may, in its sole direction and
without notice, update, revise or amend the
Services and/or Voice Services, in which case, the
Services and/or Voice Services provided to your
End Users may contain text that does not reflect
the corrected or updated text of the Services
and/or Voice Services provided to Intermedia’s
direct end users. You shall be responsible for
notifying Your End Users of any such changes or
discrepancies. Intermedia is not responsible for
updating or supporting any translated text.
7. INDEMNITY.
You shall defend, indemnify, save, and hold
Intermedia and the Intermedia Parties harmless from
any and all demands, liabilities, losses, costs, and
claims, including reasonable attorneys’ fees, asserted
against them that may arise or result from (i) Your
breach of this Agreement and/or of any license related
to the Services and/or Voice Services, (ii) Your failure
to comply with Section 1.3 of this Agreement, (iii) Your
negligence or willful misconduct or any of Your
services or products, and (iv) any action or claim
brought by End Users or third parties, including but not
limited to, Governmental Authorities, related to the
Services and/or Voice Services, including but not
limited to, any action taken by Intermedia with respect
to Sections 1.3 and 9.13 of this Agreement.
8. CONFIDENTIALITY AND PRIVACY POLICY.
8.1.
Confidential Information. “Confidential
Information” is all confidential information disclosed by
a party (“Disclosing Party”) to the other party
(“Receiving Party”), whether orally or in writing, that is
designated as confidential or that reasonably should be
understood to be confidential given the nature of the
information and the circumstances of disclosure. Your
Confidential Information will include Your Data.
Intermedia’s Confidential Information will include the
Services and/or Voice Services (and any portion
thereof), the terms and conditions of this Agreement
and all related forms and support records (written or
MSA: Reseller V5.7
electronic), as well as Intermedia’s business and
marketing plans, technology and technical information,
product plans and designs, and business processes
disclosed by Intermedia. Confidential Information will
not include any information that (i) is or becomes
generally known to the public without breach of any
obligation owed to the Disclosing Party, (ii) was known
to the Receiving Party prior to its disclosure by the
Disclosing Party without breach of any obligation owed
to the Disclosing Party, (iii) is received from a third
party without breach of any obligation owed to the
Disclosing Party, or (iv) was independently developed
by the Receiving Party.
8.2.
Protection of Confidential Information.
Except as otherwise permitted by this Agreement or in
writing by the Disclosing Party, the Receiving Party will
use the same degree of care that it uses to protect the
confidentiality of its own confidential information of like
kind (but in no event less than reasonable care) not to
disclose or use any Confidential Information of the
Disclosing Party for any purpose outside the scope of
this Agreement.
8.3.
Use and Disclosure by Intermedia.
Notwithstanding the foregoing, Intermedia may use or
disclose Your Data or the Data of your End Users (as
defined in the End User MSA) (a) as expressly
permitted in writing by You, (b) as expressly provided
in this Agreement, including (i) in accordance with the
Privacy Policy (as if such Data were “Information” as
defined under the Privacy Policy), and (ii) to access
such Data to provide the Services and/or Voice
Services or prevent or address service or technical
problems, or at Your request in connection with
customer support matters.
8.4.
Authorization
of
Use
and
Disclosure. You expressly authorize, acknowledge
and agree that Your Data and the Data (as defined
in the End User MSA) of your End Users is subject
to the Privacy Policy and that Intermedia may act in
accordance with the Privacy Policy in connection
with providing the Services and/or Voice Services
or when otherwise necessary.
9. MISCELLANEOUS.
9.1.
No Solicitation. During the term of this
Agreement and for one (1) year after its termination,
you shall not solicit or attempt to solicit, directly or
indirectly, for employment or other services, any
persons or entities employed or engaged by Intermedia
during such period without Intermedia’s prior written
approval.
9.2.
Governing Law; Jurisdiction; Forum;
Attorneys’ Fees. This Agreement will be governed by
and construed in accordance with the laws of the State
of California without regard to its conflicts of laws or its
Page 7 of 19
MSA: RESELLER
principles. Any claim or suit arising out of or relating to
this Agreement will be brought in any court of
competent jurisdiction located in the State of California.
In any action to enforce this Agreement, including,
without limitation, any action by Intermedia for the
recovery of fees due hereunder, You will pay
Intermedia reasonable attorneys’ fees and costs in
connection with such action if Intermedia prevails in
such action. You agree to waive the right to trial by jury
with respect to any proceeding related to or arising out
of this Agreement
9.3.
Written Communications and Notice.
You accept that communication from Intermedia may
be electronic. Intermedia may contact You by e-mail or
provide You with information by posting notices on
Intermedia’s website or to Your Account. You agree to
this electronic means of communication and You
acknowledge that all contracts, notices, information
and other communications that Intermedia provides to
You electronically are acceptable and effective as
notice. Except as otherwise specified in this
Agreement, all notices, permissions and approvals
hereunder will be in writing and will be deemed to have
been given (i) immediately upon personal delivery, (ii)
nd
the second (2 ) business day after mailing, (iii) the
nd
second (2 ) business day after sending by confirmed
st
facsimile, or (iv) the first(1 ) business day after sending
by email or, if from Intermedia to You, online posting.
Notices to You may be addressed by Intermedia to any
e-mail address, postal address or facsimile number
registered with Intermedia, or through means of online
posting through the Services and/or Voice Services.
Notices to Intermedia that are not expressly authorized
by administrative control panel under this Agreement
shall be mailed to Intermedia.Net, Inc., 815 East
Middlefield Road, Mountain View CA 94043, Attn:
Legal Department, or such other address as
designated on Intermedia’s website from time to time.
9.4.
Age and Capacity. You hereby
represent and warrant that You and any person to
whom You grant access to Your Account have reached
the older of (i) the age of eighteen (18) and (ii) the age
of majority in Your jurisdiction, and that You are not
subject to a limitation on Your ability to enter into this
Agreement.
9.5.
Severability. If any one or more of the
provisions contained herein will, for any reason, be
held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability
will not affect any of the other provisions of this
Agreement, and this Agreement will be construed as if
such provision(s) had never been contained herein,
provided that such provision(s) will be curtailed, limited,
or eliminated only to the extent necessary to remove
the invalidity, illegality, or unenforceability.
MSA: Reseller V5.7
9.6.
Waiver. No waiver by Intermedia of
any breach by You of any of the provisions of this
Agreement will be deemed a waiver of any preceding
or succeeding breach of this Agreement. No such
waiver will be effective unless it is in writing signed by
the parties hereto, and then only to the extent
expressly set forth in such writing.
9.7.
Assignment. No benefit or duty of You
under this Agreement will, without the consent of
Intermedia, be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any attempt to do so will
be void. Intermedia may assign this Agreement without
Your consent and without notice.
9.8.
Force Majeure. Except for monetary
obligations, neither party shall be liable to the other for
failure or delay in the performance of a required
obligation hereunder if such inability or delay is caused
by reason of Force Majeure Event. “Force Majeure
Event” is any cause beyond a party’s reasonable
control or anticipation, including, without limitation, acts
of war, acts of god, terrorism, earthquake, hurricanes,
flood, fire or other casualty, embargo, riot, sabotage,
labor shortage or dispute, governmental act,
insurrections, epidemics, quarantines, inability to
procure materials or transportation facilities, failure of
power, restrictive governmental laws or regulations,
condemnation, acts of third parties, failure of the
Internet or other reason that is beyond a party’s
reasonable control or anticipation.
9.9.
Survival. The preamble, “Definitions”
and Sections 2, 3, 4, 5, 6, 8, and 9 of this Master
Service Agreement will survive termination.
9.10. Entire
Agreement;
Third
Party
Beneficiaries. This Agreement, including any
Schedules, constitutes the entire agreement for
provision of the Services and/or Voice Services to You
and supersedes all other prior agreements and
understandings, both written and oral, between You
and Intermedia with respect to the Services and/or
Voice Services. You understand and agree that (a)
Intermedia and You may include, as the sole third party
beneficiaries of this Agreement, the Intermedia Parties,
and (b) in the event of any breach of this Agreement or
any Schedule, such Intermedia Parties shall have all
rights and remedies available to them as if they were
parties to this Agreement, including claiming the
benefit of Section 8.
9.11. Independent
Parties.
Nothing
contained in this Agreement shall be deemed to create,
or be construed as creating, a joint venture or
partnership between the parties. Neither party is, by
virtue of this Agreement or otherwise, authorized as an
agent or legal representative of the other party.
Page 8 of 19
MSA: RESELLER
Neither party is granted any right or authority to
assume or to create any obligation or responsibility,
express or implied, on behalf or in the name of the
other party, or to bind such other party in any manner.
9.12. Publicity and Advertising. Except as
required by law, You shall not make any written public
statement, such as advertisements, marketing
materials, or press releases, referring to the existence
or terms of the Agreement, or the relationship
memorialized by the Agreement, without the prior
written approval of Intermedia.
9.13. Regulatory Changes. If the Federal
Communications Commission (“FCC”), a foreign or
state regulatory body (e.g., PUC), or a court of
competent jurisdiction, issues a rule, regulation, law or
order which has the effect of materially increasing the
MSA: Reseller V5.7
cost to provide Services and/or Voice Services
hereunder or canceling, changing, or superseding any
material term or provision of this Agreement
(collectively “Regulatory Requirement”) then this
Agreement shall be deemed modified in such a way as
the parties mutually agree is consistent with the form,
intent and purpose of this Agreement and is necessary
to comply with such Regulatory Requirement. Should
the parties not be able to agree on modifications
necessary to comply with a Regulatory Requirement
within thirty (30) days after the Regulatory
Requirement is effective, then, upon written notice,
either party may, to the extent practicable, terminate
that portion of the Agreement impacted by the
Regulatory Requirement.
Page 9 of 19
COMPANY: M ASTER SERVICE AGREEMENT
APPENDIX 1 -- SAMPLE AGREEMENT. NOT BE RELIED UPON OR USED WITHOUT SEEKING
LEGAL ASSISTANCE. INTERMEDIA.NET MAKES NO REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO THIS AGREEMENT AND THIS DOCUMENT IS A SAMPLE THAT NEEDS TO BE
REVIEWED AND/OR REVISED BY YOUR LEGAL COUNSEL.
CAREFULLY READ THESE TERMS AND CONDITIONS, AS THEY FORM A LEGALLY BINDING AGREEMENT
BETWEEN YOU AND COMPANY. ONLY AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY MAY
EXECUTE THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS,YOU DO NOT
HAVE PERMISSION TO USE COMPANY SERVICES AND DO NOT HAVE ANY OTHER OF THE RIGHTS SET
FORTH BELOW.
Each of the foregoing are expressly incorporated
This Company’s Master Service Agreement (this
herein by reference and may updated from time-to“MSA”) is entered into between Company
time by Company. Current copies of the MSA,
(“Company”) and customer (“You”). You are not
Privacy Policy, SLA, AUP, and Schedules are
required to purchase voice services from Company
located at http://serverdata.net/legal.
nor from any of its affiliates. If You elect to
purchase voice services from an Company affiliate,
please be advised of the following: (i) voice
DEFINITIONS. For the purposes of this MSA, the
services will be provided through Company’s
following definitions apply:
affiliate; (ii) You will be required to sign separate
“Access Information” means information that alone or
Schedule(s) and to agree to related documents
together with other information, can provide access
provided by Company’s affiliate; and (iii) the terms
to any portion of Your Account, including but not
and conditions of this MSA will apply to the
limited to, Your Account number, login names,
services you receive from Company’s affiliate as
passwords, credit card or other financial information,
well as the terms and conditions in Company’s
security questions and their respective answers, and
affiliate’s Schedules and related documents. If You
any other similar information. For the avoidance of
instead choose to purchase voice services through
doubt, Your Access Information will include any
an unrelated third party, this MSA will not govern
similar information for each of Your Users.
the provision of any services provided by such
“Account” means the account created with Company
third party, such third-party-provided voice
in connection with this Agreement that relates to
services are used at Your sole risk and pursuant to
Your purchase or subscription to and use of Services
the terms and conditions you enter into with such
by You and Your Users.
third party.
“Applicable Law” means any applicable foreign,
federal, state or other laws, rules, regulations or
Any of the following actions constitutes Your
interpretations of relevant Governmental Authorities
agreement, without limitation or qualification, to be
or self-regulatory bodies.
bound by, and to comply with, the terms of this
“Beta Offerings” means any portion of the Services
Agreement:(i)
registering
for
Service
on
offered on a “beta” basis, as designated by
Company’s web page and selecting "I Accept" as
Company, including but not limited to, products,
part of the registration process, or (ii) ordering
plans, services, and platforms.
Service from Company’s personnel and providing
them with Your credit card number and billing
“Data” means all data submitted by Your Users to
information.
Company in connection with the Services, including
all content, material, IP and similar addresses,
You agree to be bound by all of the terms and
recordings, messages, software, Account Information
conditions of (i) this MSA and (ii) the following:
and Account-related settings.
• Company’s Privacy Policy (the “Privacy
“Governmental Authority” means a government,
Policy”);
regulatory organization, self-regulatory organization,
• Company’s product specific Service Level
court of competent jurisdiction or similar body.
Agreement (the “SLA” or “Service Level
“Company Parties” means Company’s affiliates
Agreement”);
(including parents and subsidiaries), vendors,
• Company’s Acceptable Use Policy (“AUP”);
licensors and partners, and its officers, employees,
and
agents and representatives.
• Company’s product specific Schedule
“PHI” means Protected Health Information which is
(“Schedule”), (collectively, this “Agreement”)
individually identifiable health information.
Master Service Agreement V 5.6
Page 10 of 19
COMPANY: M ASTER SERVICE AGREEMENT
“Services” means Company’s hosting and other
services, software and products, as such services,
software and products that are offered by Company
from time-to-time in its discretion and subscribed to,
purchased by, or used by You as set forth in a
Schedule.
“Third-Party Service” means any service or product
offered by a party that is not Company.
“User” means any of Your employees, consultants
or independent contractors to whom You grant
permission to access the Services in accordance
with Company’s entitlements procedures and this
Agreement.
“You” and “Your” means the individual or Entity on
whose behalf this Agreement is accepted.
1. SCOPE; ACCESS; SECURITY.
1.1.
Access to Services. Subject to and in
accordance with the terms of this Agreement, including
any Schedules, Company grants You a non-exclusive,
non-sublicensable, nontransferable, non-assignable,
revocable license for the term of this Agreement to
access and use the Services. Services may only be
used by Your Users for internal business purposes
only. You agree to comply with the terms and
conditions of this Agreement, including any Schedules,
and with all applicable Company procedures and
policies that further define use of the Services. You
acknowledge and agree that the actions of any of Your
Users with respect to the Services will be deemed to
be actions by You and that any breach by any of Your
Users of the terms of this Agreement, including any
Schedule, will be deemed to be a breach by You.
Account Information and Ownership.
1.2.
You agree to maintain accurate Account information by
providing updates to Company promptly, but no later
than three (3) business days, when any of Your
Account information requires change, including any
relevant Account contact information. Failure by You,
for any reason, to respond within three (3) business
days to any inquiries made by Company to determine
the validity of information provided by You will
constitute a material breach of this Agreement. You
acknowledge and agree, and expressly consent, that in
the event of any dispute regarding access to or legal
ownership of any Company account or any portion
thereof, including Your Account, Company will resolve
such dispute in its sole discretion. In addition, in the
event of such a dispute, Company may immediately
suspend, alter or terminate any relevant account,
including Your Account, or any portion thereof. You will
reimburse Company for any legal fees and other fees
incurred with respect to any dispute regarding control
or ownership of Your Account or Your Data or the
same of another Company customer. You
acknowledge and agree that (i) the legal owner of all
Data on the Account is You, the counterparty to this
Master Service Agreement V 5.6
Agreement, and not any individual User, including any
Account contact registered with Company, regardless
of any administrative designation (e.g., Administrator,
Billing Contact, Owner, etc.) and (ii) Company may
request any documentation it requires to establish
ownership and rights to Your Account and any related
Data; provided that any User with an administrative
designation has the authority to bind You to any
amendments, modifications or acknowledgements
regarding this Agreement or otherwise relating to the
Services.
Account Security and Activity. You
1.3.
acknowledge and agree that You are solely
responsible for (i) maintaining the confidentiality and
security of Your Access Information, and (ii) all
activities that occur in connection with Your Account,
whether initiated by You, by others on Your behalf or
by any other means. You will notify Company
immediately of any unauthorized use of Your Account,
Access Information or any other actual or potential
breach of security. You acknowledge and agree that
Company will not be liable for any loss that You may
incur as a result of any party using Your Access
Information, either with or without Your knowledge
and/or authorization. You further agree that You may
be held liable for losses incurred by Company, any
Company Party, or another party due to any party
using Your Access Information. Company strongly
recommends that You keep Your Access Information in
a secure location, take precautions to prevent others
from accessing it and change it when necessary to
maintain its confidentiality and security. Company
specifically disclaims all liability for any activity in
Your Account, whether authorized by You or not.
1.4.
Failure of a Line Test . With respect to
voice services, if a specific site fails a “VOIP line test”
as part of the installation process, and You are unable
or unwilling to upgrade the data circuit, router, switch,
or faulty component responsible for the failure,
Company reserves the right to cancel the order for
such site.
2. TERM AND TERMINATION.
2.1.
Term. This Agreement shall be
effective from Your acceptance of this Agreement and
shall continue until the expiration or termination of all
Schedules (“Agreement Term”). The term of each
Schedule (“Schedule Term”) shall be either the Initial
Term or Renewal Term as defined herein.
a. Monthly Plan Schedule Term. For a Monthly Plan
with Company, the Initial Term of a Schedule is the
period from the date of Your acceptance of the
Schedule through the remainder of that calendar
month. A Renewal Term for a Monthly Plan of a
Schedule is defined as one (1) calendar month
beginning at the end of the Initial Term and each
subsequent calendar month thereafter.
Page 11 of 19
COMPANY: M ASTER SERVICE AGREEMENT
b. Annual Plan Agreement Term. For an Annual Plan
with Company, the Initial Term of the Schedule is the
period from the date of Your acceptance of the
Schedule through the remainder of that calendar
month and continuing through the next twelve (12)
calendar months (for example, an Annual Plan that
begins April 14th will continue until April 30th of the
following year), unless the parties have agreed in
writing to a longer term. A Renewal Term for an Annual
Plan of a Schedule is defined as the twelve-month
period beginning at the end of the Initial Term and
each subsequent twelve-month period thereafter.
c. Automatic Renewal. Each Schedule will renew
automatically at the end of the then-current Schedule
Term for a Renewal Term unless terminated in
accordance with this Agreement by either You or
Company.
2.2.
Termination by You.
a. Monthly Plan. For a Monthly Plan, You may
terminate any Schedule for any reason by following the
termination procedure located within the Account
section of the administrative control panel prior to the
beginning of any Renewal Term. If You terminate a
Monthly Plan prior to the end of the then-current Term,
Company will not be required to refund to You any fees
already paid.
b. Annual Plan. For an Annual Plan, You may
terminate any Schedule for any reason by following the
termination procedure located within the Account
section of the administrative control panel at any time.
If such a termination is effective prior to the end of the
then-current Term, You will incur a fee that is the
lesser of (a) two (2) months of the Minimum Package
Fee from the end of the calendar month following the
requested termination date, as defined on Your thencurrent plan; and (b) the Minimum Package Fee for the
remainder of the then-current Term. The “Minimum
Package Fee” is the monthly charge for Your base
package excluding any additional items that You have
purchased along with such base package.
c. Refunds/Fees for Termination by You. Fees for
non-recurring Services and set up fees will not be
refunded. Any fees previously waived, discounts, or
rebates applied may be reinstated if You terminate the
account during the Schedule Term or if You breach this
Agreement, including any Schedule.
2.3.
Termination by Company.
a. 15-Day Termination. Company may terminate this
Agreement, including any Schedule, for any reason by
providing fifteen (15) calendar days’ notice. If Company
terminates this Agreement pursuant to this Section
2.3(a), then all Schedules will terminate at the end of
the fifteen (15) day notice period.
If Company
terminates any Schedule pursuant to this Section
2.3(a), then (i) for a Schedule with a Monthly Plan, if
Master Service Agreement V 5.6
the effective termination date occurs prior to the end of
the then-current Schedule Term, Company will refund
(or refrain from charging You) the pro rata monthly fees
for the month in which Services terminate and (ii) for a
Schedule with an Annual Plan, Company will refund (or
refrain from charging You) the monthly fees for the
month in which Services terminate. For Schedules with
either a Monthly Plan or an Annual Plan, if Company
terminates this Agreement, including any Schedule,
pursuant to this Section 2.3(a), Company will not
charge You monthly fees for any month following the
month in which Company terminates this Agreement,
including any Schedule.
b. Immediate Termination. Company may terminate
this Agreement, including any Schedule, (or suspend
Your Account) immediately and without prior notice for
any of the following reasons:
1)
Any material breach of this
Agreement, including any Schedule, by You, as
determined by Company in its sole discretion,
including, but not limited to, failure to make any
payment when due, violation of the AUP or any other
Company policy or procedure applicable to the
Services as notified to You from time to time, which
remains uncured beyond thirty (30) days’ notice by
Company; and
2)
If Your use of the Services
results in, or is the subject of, actual or potential legal
action or threatened legal action, against Company or
any of its affiliates, vendors, partners, representatives
or customers, without consideration for whether such
actual or potential legal action or threatened legal
action is eventually determined to be with or without
merit.
c. Termination or Suspension of Users. In lieu of
terminating or suspending Your entire Account,
Company may suspend Your Account or terminate or
suspend individual Users.
d. No Refunds; Further Payment Due. If Company
terminates this Agreement, including any Schedule,
pursuant to Section 2.3(b), (i) Company will not refund
to You any paid fees and (ii) You will be liable for any
payment that would have been due had You
terminated pursuant to section 2.2.
2.4.
Following Termination. Termination
will not cancel or waive any fees owed to Company or
incurred prior to or upon termination. You agree that
Company may charge such unpaid balance to Your
Account on file or otherwise bill You for such unpaid
balance. Upon termination, You must promptly
uninstall all software provided by Company in
connection with the Services. All of Your Data may be
irrevocably deleted within fourteen (14) calendar days
of termination, including but not limited to, databases,
contacts, calendars, e-mail, website content, and any
Data hosted by Company. It will be solely Your
Page 12 of 19
COMPANY: M ASTER SERVICE AGREEMENT
responsibility to secure all necessary Data from Your
Account prior to termination. Company will not be
responsible or otherwise liable for any loss of Your
Data or any damages arising from the deletion of Your
Data following termination of the Services.
3. FEES, BILLING, TAXES, CHARGES.
3.1.
Fees. The fees initially charged upon
ordering any Service will be effective for the Initial
Term and each Renewal Term of a Schedule,
provided, that Company will have the right to increase
these fees at any time upon thirty (30) calendar days’
notice to You. If You do not agree with such fee
increase, You will have the right to terminate the
applicable Schedule immediately upon notice received
within thirty (30) calendar days of date of notice of the
fee increase. All payments made to Company shall be
in US Dollars.
3.2.
Billing and Payment Arrangements.
Company will bill You monthly for all established and
recurring fees, and any applicable one-time fees in that
month, including but not limited to interest, check
paying program fees and returned check fees. Pro rata
billing may occur throughout the course of a billing
cycle for feature add-ons that You enable on your
Account during any given month.
3.3.
Payment by Automated Means.
a. You may view and print an invoice for Your
Account using the administrative control panel made
st
available to You. On or about the first (1 ) day of each
month, Company will apply the current monthly
charges to Your automated payment method, the
relevant information of which You entered on the billing
information page in the administrative control panel.
Payment by automated means includes any form of
automated payment accepted by Company from timeto-time, including credit card, debit card, direct debit or
other means.
b. You must provide Company with valid automated
payment information as a condition to receive or use
the Services. You are responsible for and agree to
update Company with any changes to Your billing
and/or automated payment information (e.g. new or
updated credit card, credit card expiration date or other
payment account information). By providing
Company with the automated payment information,
You authorize Company to charge Your automated
payment account for any amounts arising from or
relating
to
the
Services
without
further
authorization from You. It is Your responsibility to
keep Your automated payment information up-to-date.
If charges to Your automated payment account fail,
Company will email a warning to Your Account billing
contacts.
c. If Company is unable to successfully process Your
payment by automated means by the seventh (7th)
Master Service Agreement V 5.6
calendar day of the month for which the payment is
due, Your payment will be considered late and not paid
in full. Company may suspend or terminate Your
Account in accordance with Section 2.3(b)(i) for failure
to timely pay in full. Late payments are subject to a
late-payment charge of the greater the greater of (i)
interest calculated at the lesser of (x) eighteen percent
(18%) and (y) the maximum amount permitted by law
and (ii) twenty-five dollars ($25). Such interest will
accrue daily from the due date until the date of actual
payment of the overdue amount, whether before or
after judgment. You will pay the interest immediately
on demand. You will pay all collection costs incurred by
Company (including, without limitation, reasonable
attorneys’ fees).
3.4.
Payment by Check.
a. If You apply for and are accepted into Company’s
check paying program, Company will issue You an
invoice within the first five (5) calendar days of each
calendar month. Each invoice will include an invoice
processing fee of twenty-five dollars ($25). Payment by
th
check must be received by the fifteenth (15 ) calendar
day of each month. Acceptance into and continued
participation in Company’s check paying program will
be at Company’s sole discretion.
b. Should Your check not be honored, a check fee of
the lesser of (i) fifty dollars ($50) and (ii) the maximum
amount permitted by law, will be charged to Your
Account. In addition, Company may require You to pay
by cashier’s check or money order.
c. If Company does not receive payment by the
th
fifteenth (15 ) calendar day of the month for which the
payment is due, Your payment will be considered late
and not paid in full. Company may suspend or
terminate Your Account in accordance with Section
2.3(b)(i) for failure to timely pay in full. Late payments
are subject to a late-payment charge of the greater the
greater of (i) interest calculated at the lesser of (x)
eighteen percent (18%) and (y) the maximum amount
permitted by law and (ii) twenty-five dollars ($25). Such
interest will accrue daily from the due date until the
date of actual payment of the overdue amount,
whether before or after judgment. You will pay the
interest immediately on demand. You will pay all
collection costs incurred by Company (including,
without limitation, reasonable attorneys’ fees).
3.5.
Fees for Excess Use. You agree to
monitor and maintain Your Accounts within all
Company-specified limits and in a manner that does
not disrupt the activities of Company and other
Company customers and users. If Your usage exceeds
the limits for Your Account or may disrupt the activities
of other Company customers, You agree that
Company may immediately, in its sole discretion, (i)
charge You for such excess usage via Your automated
payment account, or by invoice if You have been
Page 13 of 19
COMPANY: M ASTER SERVICE AGREEMENT
accepted into Company’s check paying program, (ii)
upgrade You to a plan or increase the limits on Your
Account to address this excess usage, and/or (iii)
suspend Your Account or terminate Your Account upon
notice To You. Usage and associated charges for
excess usage will be determined based solely upon
Company’s collected usage information. Unused
monthly allotments will not accrue or carry over from
one month to any other month. Upon any upgrade or
increase on the limits of Your Account, You will be
responsible for the new costs and fees.
3.6.
Taxes.
In addition to Company’s
charges, You will be liable for all taxes, governmental
fees and assessments related to fees and charges
charged to You under this Agreement or otherwise in
respect of Your use of the Services.
3.7.
Fees for Additional Services. You
agree to pay Company’s then-current rates and
expenses, including the cost of Company’s vendors,
for any requests related to information retrieval,
subpoenas, consulting and advisory services, or similar
work.
3.8.
Bill Disputes. You will notify Company
of any dispute relating to charges billed to Your
Account by submitting a Billing Dispute Notification
Form (available through Company’s customer service)
to Company within thirty (30) days of the date the
disputed charges appeared on Your Account. The
existence of a dispute will not relieve You from paying
any and all amounts billed hereunder. You waive all
rights to dispute any charges not disputed by written
notice as required above.
3.9.
Electronic Billing and Documentation.
All billing and other documentation regarding the
Services may be provided electronically (“Electronic
Documentation”). You acknowledge and agree that
You are able to view all Electronic Documentation and
consent to receiving Electronic Documentation and
decline to receive hard copies of any such materials.
4. USE OF THE SERVICES.
4.1.
Internal Use. You will use the Services
for Your own internal business, non-residential and
non-personal use. You acknowledge and agree that
You will not allow any third party, including Your
vendors and service providers, to access or use the
Services unless such third party is allowed access for
the purpose of providing authorized customer support
services.
4.2.
Restricted Activities. You will not (A)
use any Service for any purpose outside the Service’s
intended scope, features, and function set, (B) use any
Service for third-party training, (C) use any Service as
an application service provider or service bureau,
unless You have entered into a separate written
agreement with Company to provide such services, (D)
Master Service Agreement V 5.6
use any Service for timesharing or rental, (E) use any
Service to design software or other materials or
services with similar or competitive functionality for any
purpose, including distribution to third parties, (F)
except with respect to Your Data, duplicate any portion
of the Services or display, distribute, publish, or
otherwise disclose any Service; (G) use any of the
Services to interface with any other service or
application that is outside the scope of intended use;
(H) decompile, disassemble, or otherwise reverse
engineer any portion of the Services; (I) make any
modification or interface to any Service that is not
specifically authorized by Company without prior
written consent of Company; (J) resell or sublicense
any portion of the Services, and any purported resale
or sublicense will be void; and (K) store, maintain, or
use on or through the Service any “Protected Health
Information” or “PHI” as those terms are defined in the
Health Insurance Portability and Accountability Act of
1996 and the rules and regulations promulgated
thereunder, as each may be amended from time to
time, unless a formal Business Associate Agreement
has been executed between Company and You. You
may not access the Services for purposes of
monitoring
their
performance,
availability,
or
functionality, or for any other benchmarking or
competitive purposes, without Company’s prior written
consent. You may not, without Company’s prior written
consent, access the Services if You are a direct
competitor of Company.
4.3.
Applicable Law. You acknowledge and
agree that access and use of the Services may be
restricted or limited as a result of Applicable Laws and
that You will not use, or allow the use of the Services in
contravention of, and will comply with, any Applicable
Law. You represent that You and Your Users are not
named on any Government Authority list of persons or
entities prohibited from receiving exports, and (ii) You
will not permit Users to access or use Services in
violation of any export embargo, prohibition or
restriction. You acknowledge and agree that that it is
Your sole responsibility to use the Services in a lawful
manner.
5. YOUR DATA; FEEDBACK.
5.1.
Submission of Your Data. Any Data
You provide to Company in connection with the
Services must comply with the AUP. Any Data You
provide to Company in connection with the Services
shall not be PHI, unless a formal Business Associate
Agreement has been executed between Company and
You. Attempting to place or transmit, or requesting
placement or transmission, of Data that does not
comply with the AUP or is PHI will be a material breach
of this Agreement. Company may, in its sole discretion,
reject or remove Data that You have used or attempted
to use with respect to the Services. Any Data used with
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COMPANY: M ASTER SERVICE AGREEMENT
respect to the Services by or through You will be free
of any and all malicious code, including without
limitation, disabling devices, drop dead devices, time
bombs, trap doors, trojan horses, worms, computer
viruses and mechanisms that may disable or
negatively impact the Services or Company’s servers.
You hereby represent and warrant to Company that
You have the right to use any patented, copyrighted,
trademarked, proprietary or other material in
connection with Data that You use, post, or otherwise
transfer or transmit with respect to the Services.
5.2.
Public Disclosure of Data. You are
solely responsible for ensuring that You do not
accidentally make any private Data publicly available.
Any Data made public may be publicly accessible
through the internet and may be crawled and indexed
by search engines or other third parties. By making any
Data publicly available on any of the Services You
affirm that You have the consent, authorization or
permission, as the case may be from every person
who may claim any rights in such Data to make such
Data available in such manner.
5.3.
Data Takedown. By making any Data
publicly available in the manner aforementioned, You
expressly agree that Company will have the right to
block access to or remove such Data made available
by You, if Company receives complaints, inquiries or
notices concerning any illegality or infringement of
rights in such Data. You expressly consent to
determination of questions of illegality or infringement
of rights in such Data by the agent designated by
Company for this purpose.
5.4.
Filtering. Company may employ
various filtering methods to reduce unwanted content,
such as SPAM e-mail, from reaching Your Company
Account. You acknowledge and agree that such
methods may prevent legitimate content from reaching
Your Account and that Company will not be liable
therefor.
5.5.
Control. Company is not obligated to
exercise control over the content of information,
including Your Data, passing through Company’s
network except any controls expressly provided in this
Agreement.
5.6.
Feedback. Any feedback, suggestions,
testimonials, endorsements, information or materials
conveyed to Company by You or Your Users in
connection with the Services shall be collectively
deemed “Feedback.” You agree to grant and hereby
grant to Company a non-exclusive, perpetual,
irrevocable, royalty free, worldwide license (with the
right to grant and authorize sublicenses) to make,
have made, use, import, offer for sale, sell, reproduce,
distribute, modify, adapt, prepare derivative works of,
display, perform, and otherwise exploit such Feedback
without restriction.
Master Service Agreement V 5.6
6. CONFIDENTIALITY AND PRIVACY.
6.1.
Confidential Information. “Confidential
Information” is all confidential information disclosed by
a party (“Disclosing Party”) to the other party
(“Receiving Party”), whether orally or in writing, that is
designated as confidential or that reasonably should be
understood to be confidential given the nature of the
information and the circumstances of disclosure. Your
Confidential Information will include Your Data.
Company’s Confidential Information will include the
Services (and any portion thereof), the terms and
conditions of this Agreement and any Schedules, and
all related Service order forms, as well as Company’s
business and marketing plans, technology and
technical information, product plans and designs, and
business
processes
disclosed
by
Company.
Confidential Information will not include any information
that (i) is or becomes generally known to the public
without breach of any obligation owed to the Disclosing
Party, (ii) was known to the Receiving Party prior to its
disclosure by the Disclosing Party without breach of
any obligation owed to the Disclosing Party, (iii) is
received from a third party without breach of any
obligation owed to the Disclosing Party, or (iv) was
independently developed by the Receiving Party.
6.2.
Protection of Confidential Information.
Except as otherwise permitted by this Agreement or in
writing by the Disclosing Party, (i) the Receiving Party
will use the same degree of care that it uses to protect
the confidentiality of its own confidential information of
like kind (but in no event less than reasonable care)
not to disclose or use any Confidential Information of
the Disclosing Party for any purpose outside the scope
of this Agreement, and (ii) the Receiving Party will limit
access to Confidential Information of the Disclosing
Party to those of its employees, contractors and agents
who need such access for purposes consistent with
this Agreement and who are bound by confidentiality
obligations at least as protective of Disclosing Party
and its Confidential Information as the provisions of
this Agreement.
6.3.
Use and Disclosure by Company.
Notwithstanding the foregoing, Company may use or
disclose Your Data (a) as expressly permitted in writing
by You, (b) as expressly provided in this Agreement,
including (i) in accordance with the Privacy Policy (as if
such Data were “Information” as defined under the
Privacy Policy), and (ii) to access Your Data to provide
the Services or prevent or address service or technical
problems, or at Your request in connection with
customer support matters. You expressly consent to
the foregoing use and disclosure.
7. BETA OFFERINGS.
The SLA does not apply to any Beta Offerings.
Notwithstanding anything else set forth in this
Agreement, Company does not make any
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COMPANY: M ASTER SERVICE AGREEMENT
representations or warranties regarding any Beta
Offering or the integrity of any data stored in
connection with any Beta Offering. You are
strongly discouraged from using any Beta Offering
in connection with sensitive data. Company may, in
its sole discretion, change or terminate any Beta
Offering without notice and does not represent or
warrant the result of any such action. Company may, in
Company’s sole discretion, convert any Beta Offering
to a paid service upon notice to You . To avoid
incurring increased charges following such a
conversion, You must terminate (i) the individual
converted service (if possible) by contacting Company
as directed in the conversion notice, or (ii) if You
subscribe to no other services under Your Account, the
entire Account, pursuant to section 2 of this MSA.
8. LIMITED WARRANTY; LIMITATION ON LIABILITY;
THIRD-PARTY SERVICES.
8.1.
Limited Warranty; Limitation on
Liability. Company provides the Services and any
related products on an “as is” basis. You expressly
agree that use of the Services is at Your sole risk.
Company and the Company Parties expressly
disclaim all warranties of any kind, whether
express, implied, statutory, or otherwise, oral or
written, including, but not limited to the implied
warranties of merchantability, fitness for a
particular purpose and non-infringement. You
hereby agree that the terms of this Agreement,
including any Schedule, will not be altered due to
custom or usage or due to the parties’ course of
dealing or course of performance under this
Agreement, including any Schedule. Company and
Company Parties will not be liable for any direct,
indirect,
incidental,
special,
punitive
or
consequential damages (including but not limited
to damages for lost profits, business interruption,
loss of programs or information, and the like) that
result from the use or inability to use the Services
or from mistakes, the Services not meeting Your
requirements
or
expectations,
omissions,
hardware failures, translations and system
wordings, functionality of filters, migration issues,
interruptions, deletion of files or directories,
unavailability of backups, errors, defects, delays in
operation, or transmission, regardless of whether
Company or any Company Party has been advised
of such damages or their possibility. Company will
not be liable for any harm that may be caused by
Your access to application programming interfaces
or the execution or transmission of malicious code
or
similar
occurrences,
including
without
limitation, disabling devices, drop dead devices,
time bombs, trap doors, trojan horses, worms,
viruses and similar mechanisms. You agree that
the total liability of Company and any Company
Party and Your sole remedy for any claims
Master Service Agreement V 5.6
regarding the Services under this Agreement,
including any Schedule, or otherwise is limited to
any applicable credits set forth in the Service Level
Agreement.
8.2.
Other Liability. None of the Company
Parties is responsible to You for any warranty provided
by Company.
8.3.
Third-Party Services. Company may
link to or offer Third-Party Services on Company’s
website or otherwise through the Services. Any
purchase, enabling, or engagement of Third-Party
Services,
including
but
not
limited
to
implementation,
customization,
consulting
services, and any exchange of Data between You
and any Third-Party Service, is solely between You
and the applicable Third-Party Service provider
and is subject to the terms and conditions of such
Third-Party Provider. Company does not warrant,
endorse or support Third-Party Services and is not
responsible or liable for such Services or any
losses or issues that result as Your use of such
services. If You purchase, enable or engage any
Third-Party Service for use in connection with the
Services, You acknowledge that Company may allow
providers of those Third-Party Services to access Your
Data used in connection with the Services as required
for the interoperation of such Third-Party Services with
the Services. You represent and warrant that Your use
of any Third-Party Service signifies Your independent
consent to the access and use of Your Data by the
Third-Party Service provider, and that such consent,
use, and access is outside of Company’s control.
Company will not be responsible or liable for any
disclosure, modification or deletion of Data resulting
from any such access by Third-Party Service
providers.
9. OWNERSHIP AND CONTROL.
9.1.
No Transfer. Except for rights
expressly granted in this Agreement, including any
Schedules Company does not transfer any intellectual
or other property or proprietary right to You. All right,
title, and interest in any Service provided to You,
including without limitation any copyright, trade secret
and vested or potential trademark and patent rights, is
solely the property of Company and its vendors and
licensors. As between You and Company, all materials
distributed by Company in connection with the
Services will at all times remain the property of
Company, and upon the request of Company or upon
termination of this Agreement or any Schedule, You
will promptly return any and all such materials.
9.2.
Control. Company will have sole and
complete control over, and reserves the right at any
time to make changes to, the configuration,
appearance, content and functionality of the Services.
In addition, Company reserves the right, at any time,
Page 16 of 19
COMPANY: M ASTER SERVICE AGREEMENT
without prior notice, to the exercise of its sole
discretion to suspend or terminate any Service for the
protection of the security and integrity of the Services
or other business, technical or financial considerations
as determined by Company.
9.3.
Feedback License. Company will have
a royalty-free, worldwide, transferable, sublicensable,
irrevocable, perpetual license to use or incorporate into
the Services any suggestions, enhancement requests,
recommendations or other feedback provided by You
and Your Users to Company or any Company Party.
10. INTELLECTUAL PROPERTY PROTECTION.
Company will, at its own expense, defend or at its
option settle, any claim brought against You by a
third party on the issue of infringement of any
copyright, patent, or trademark of that third party,
in each case by the “Company Technology,” as
defined below in this Section 10; provided that You
provide Company with (a) prompt written notice of
such claim; (b) control over the defense and
settlement of such claim; and (c) proper and full
information and assistance to settle and/or defend
any such claim. In the event of any claim for which
Company may be obligated to defend or settle in
accordance with this Section 10, Company may at
its sole option and expense, either: (i) procure the
right to use the Company Technology as provided
herein, (ii) replace the Company Technology with
other non-infringing products with equivalent
functionality; (iii) suitably modify the Company
Technology so that it does not infringe, or (iv)
terminate this Agreement. Company assumes no
liability for infringement claims arising from: (1)
any combination of the Company Technology with
products or technology not provided by Company,
if the infringement would not have occurred if the
Company Technology had not been so combined;
(2) any modification of the Company Technology,
in whole or in part, by anyone other than Company,
if the infringement would not have occurred but for
such modification; (3) use by You of any Company
Technology after Company notifies You that
continued use may subject You to such claim of
infringement, provided that Company provides You
with a replacement release of the Company
Technology; (4) any proprietary or intellectual
property rights not expressly identified in this
Section 10; or (5) any non-United States
proprietary or intellectual property rights.
“Company Technology” means the software of
Company which is delivered to You in connection
with Your use of the Services. This Section 10 sets
forth the entire liability and obligations of
Company, and Your exclusive remedy, with respect
to any actual or alleged infringement of any
intellectual property or proprietary right by the
Master Service Agreement V 5.6
Services. The terms of this Section 10 are subject
to the limitations of Section 8.
11. HARDWARE, EQUIPMENT, AND SOFTWARE.
Unless purchased from Company or one of its
affiliates pursuant to a separate written agreement,
You are responsible for and must provide all hardware,
software, services and other components necessary to
access and use the Services. Company makes no
representations, warranties, or assurances that third
party hardware, software, services and other
components will be compatible with any Service.
Company reserves the right to change or upgrade any
equipment or software that it uses to provide the
Services without notice to You. Company will install
security patches, updates, upgrades and service packs
(“Updates”) as it determines in its sole discretion, and
reserves the right, but not the obligation, to roll back
any Updates. Updates may change system behavior
and functionality and as such may negatively affect the
Services used by You. Company cannot foresee nor
be responsible or liable for service disruption or
changes in functionality or performance due to
Updates. Company is not responsible or liable for
issues that may arise from incompatibilities between
Your Data and use of the Services and any Update or
hardware or software change or configuration,
regardless of whether discretionary or requested.
12. INDEMNIFICATION.
You agree to defend, indemnify, save, and hold
Company and the Company Parties harmless from any
and all demands, liabilities, losses, costs, and claims,
including reasonable attorneys’ fees, asserted against
them that may arise or result from Your use of the
Services, Your breach of this Agreement (or any
Schedule), or Your negligence or willful misconduct.
13. MODIFICATION OF TERMS.
Company may update, amend, modify or
supplement the terms and conditions of this
Agreement, including any Schedules, the SLA, AUP
and Privacy Policy, from time to time by giving You
notice. Such changes will take effect immediately. Any
such modification may be made without the consent of
any third party beneficiaries of this Agreement. You
can review the most current version of this Agreement
at any time at: (http://www.serverdata.net/legal/). Your
continued use of Your Account or the Services
after Company posts a new version of the
Agreement will be conclusively deemed to be
acceptance by You of any such new version.
14. MISCELLANEOUS.
14.1.
Governing Law; Jurisdiction; Forum;
Attorneys’ Fees. This Agreement will be governed by
and construed in accordance with the laws of the State
of California without regard to its conflicts of laws or its
principles. Any claim or suit arising out of or relating to
Page 17 of 19
COMPANY: M ASTER SERVICE AGREEMENT
this Agreement will be brought in any court of
competent jurisdiction located in Santa Clara County,
California. In any action to enforce this Agreement,
including, without limitation, any action by Company for
the recovery of fees due hereunder, You agree to pay
Company reasonable attorneys’ fees and costs in
connection with such action if Company prevails in
such action. You agree to waive the right to trial by jury
with respect to any proceeding related to or arising out
of this Agreement.
14.2.
Written Communications and Notice.
You accept that communication from Company may be
electronic. Company may contact You by e-mail or
provide You with information by posting notices on
Company’s website or to Your Account. You agree to
this electronic means of communication and You
acknowledge that all contracts, notices, information
and other communications that Company provides to
You electronically are acceptable and effective as
notice. Except as otherwise specified in this
Agreement, all notices, permissions and approvals
hereunder will be in writing and will be deemed to have
been given (i) immediately upon personal delivery, (ii)
nd
the second (2 ) business day after mailing, (iii) the
nd
second (2 ) business day after sending by confirmed
st
facsimile, or (iv) the first (1 ) business day after
sending by email or, if from Company to You, online
posting. Notices to You may be addressed by
Company to any e-mail address, postal address or
facsimile number registered with Company, or through
means of online posting through the Services. Notices
to Company that are not expressly authorized by
administrative control panel under this Agreement shall
be mailed to Company.
14.3.
Age and Capacity. You hereby
represent and warrant that each User has reached the
older of (i) the age of eighteen (18) and (ii) the age of
majority in the User’s jurisdiction, and that You are not
subject to a limitation on Your ability to enter into this
Agreement.
14.4.
Severability. If any one or more of the
provisions contained herein will, for any reason, be
held to be invalid, illegal, or unenforceable in any
respect, such invalidity, illegality, or unenforceability
will not affect any of the other provisions of this
Agreement, and this Agreement will be construed as if
such provision(s) had never been contained herein,
provided that such provision(s) will be curtailed, limited,
or eliminated only to the extent necessary to remove
the invalidity, illegality, or unenforceability.
14.5.
Waiver. No waiver by either party of
any breach by the other party of any of the provisions
of this Agreement will be deemed a waiver of any
preceding or succeeding breach of this Agreement. No
such waiver will be effective unless it is in writing
Master Service Agreement V 5.6
signed by the parties hereto, and then only to the
extent expressly set forth in such writing.
14.6.
Remedies. The rights and remedies of
the parties hereunder shall not be mutually exclusive,
i.e., the exercise of one (1) or more of the provisions
hereof shall not preclude the exercise of any other
provision hereof. The parties acknowledge, confirm
and agree that damages may be inadequate for a
breach or a threatened breach of this Agreement and,
in the event of a breach or threatened breach of any
provision hereof, the respective rights and obligations
hereunder shall be enforceable by specific
performance, injunction or other equitable remedy.
Nothing contained in this Agreement shall limit or affect
any rights at law or statute or otherwise for a breach or
threatened breach of any provision hereof, it being the
intent of this provision to clarify that the respective
rights and obligations of the parties shall be
enforceable in equity as well as at law or otherwise.
14.7.
No Assignment. No benefit or duty of
You under this Agreement will, without the consent of
Company, be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge,
encumbrance or charge, and any attempt to do so will
be void. Company may assign this Agreement without
Your consent and without notice.
14.8.
Fair Interpretation, Headings. This
Agreement has been negotiated by the parties and
their respective counsel. This Agreement will be
interpreted fairly in accordance with its terms and
without any strict construction in favor of or against
either party based on draftsmanship of the Agreement
or otherwise. The headings and captions used in this
Agreement are used for convenience only and are not
to be considered in construing or interpreting this
Agreement.
14.9.
Force Majeure. Except for monetary
obligations, neither party shall be liable to the other for
failure or delay in the performance of a required
obligation hereunder if such inability or delay is caused
by reason of Force Majeure Event. “Force Majeure
Event” is any cause beyond a party’s reasonable
control or anticipation, including, without limitation, acts
of war, acts of god, terrorism, earthquake, hurricanes,
flood, fire or other casualty, embargo, riot, sabotage,
labor shortage or dispute, governmental act,
insurrections, epidemics, quarantines, inability to
procure materials or transportation facilities, failure of
power, restrictive governmental laws or regulations,
condemnation, acts of third parties, failure of the
Internet or other reason that is beyond a party’s
reasonable control or anticipation.
Survival. The preamble, “Definitions”
14.10.
and Sections 2, 3, 4, 5, 6, 8, 9, 10, 12, 13 and 14 of
this MSA will survive termination.
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COMPANY: M ASTER SERVICE AGREEMENT
14.11.
Independent Parties. Notwithstanding
anything to the contrary herein, it is acknowledged,
confirmed, and agreed that You shall be, and shall be
deemed to be, an independent entity for all intents and
purposes, including, without limitation, federal taxation.
You shall pay all expenses in connection with
performing Your obligations hereunder and shall not
incur any indebtedness on behalf of Company in
connection with such expenses. Neither party shall
have or hold itself out as having any right, authority nor
agency to act on behalf of the other party in any
capacity or in any manner, except as be specifically
authorized in this Agreement.
14.12.
Entire
Agreement;
Third
Party
Beneficiaries. This Agreement, including any
Schedules, constitutes the entire agreement for
Master Service Agreement V 5.6
provision of the Services to You and supersedes all
other prior agreements and understandings, both
written and oral, between You and Company with
respect to the Services. You understand and agree
that (a) Company and You may include, as the sole
third party beneficiaries of this Agreement, the
Company Parties, and (b) in the event of any breach of
this Agreement, including any Schedule, such
Company Parties shall have all rights and remedies
available to them as if they were parties to this
Agreement, including claiming the benefit of Section 8
of this MSA.
14.13.
Counterparts. This Agreement may be
executed in one or more counterparts, each of which
will be deemed an original, but which collectively will
constitute one and the same instrument.
Page 19 of 19